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PART 4For the protection of Wales and West Utilities Limited

Application

1. For the protection of the protected person referred to in this part of this Schedule the following provisions shall, unless otherwise agreed in writing between the undertaker and the protected person, have effect.

Interpretation

2. In this Part of this Schedule—

“acceptable insurance” means third party liability insurance effected and maintained by the undertaker with a limit of indemnity of not less than £10,000,000 (Ten Million Pounds) per occurrence or series of occurrences arising out of one event. Such insurance shall be maintained for the entire construction period of the authorised works;

“apparatus” means in the case of the protected person, any mains, pipes or other apparatus belonging to or maintained by a gas transporter for the purposes of gas supply;

“authorised works” has the same meaning as in Schedule 1 (authorised development) of this Order;

“commencement” has the same meaning as in paragraph 1 of Schedule 3 (Requirements) and commence shall be construed to have the same meaning;

“functions” includes powers and duties;

“in” in a context referring to apparatus in land includes a reference to apparatus under, over, across, along or upon such land;

“maintain” and “maintenance” shall include the ability and right to do any of the following in relation to any apparatus of the protected person including construct, use, repair, alter, inspect, renew or remove the apparatus;

“plan” or “plans” include all designs, drawings, specifications, method statements, soil reports, programmes, calculations, risk assessments and other documents that are reasonably necessary properly and sufficiently to describe and assess the works to be executed;

“protected person” means Wales and West Utilities Limited, a limited company registered under Company No 05046791 and having its registered office at Wales & West House, Spooner Close Coedkernew, Newport, South Wales NP10 8FZ, being a gas transporter within the meaning of Part 1 of the Gas Act 1986; and

3. Except for paragraphs 5 (retained apparatus: Protection Gas Undertakers) and 6 (expenses) this Schedule does not apply to apparatus in respect of which the relations between the undertaker and the protected person are regulated by the provisions of Part 3 of the 1991 Act.

Acquisition of Land

4. Regardless of any provision in this Order or anything shown on the land plans or contained in the book of reference to the Order, the undertaker shall not acquire any land interest or apparatus or override any easement or other interest of the protected person otherwise than by agreement.

Retained apparatus: Protection: Protected Persons

5.—(1) Not less than 56 days before the commencement of any authorised works authorised by this Order that are near to, or will or may affect, any apparatus the undertaker shall submit to the protected person in question a plan.

(2) In relation to works which will or may be situated on, over, under or within 15 metres measured in any direction of any apparatus, or (wherever situated) impose any load directly upon any apparatus or involve embankment works within 15 metres of any apparatus, the plan to be submitted to the protected person under sub-paragraph (1) shall be detailed including a method statement and describing—

(a)the exact position of the works;

(b)the level at which these are proposed to be constructed or renewed;

(c)the manner of their construction or renewal including details of excavation, positioning of plant etc;

(d)the position of all apparatus;

(e)by way of detailed drawings, every alteration proposed to be made to or close to any such apparatus; and

(f)intended maintenance regimes.

(3) The undertaker shall not commence any works to which sub-paragraph (2) applies until the protected person has given written approval of the plan so submitted.

(4) Any approval of the protected person required under sub-paragraph (2)—

(a)may be given subject to reasonable conditions for any purpose mentioned in sub-paragraph (5) or (7);

(b)shall not subject to sub-paragraph 4(a) be unreasonably withheld.

(5) In relation to a work to which sub-paragraph (2) applies, the protected person may require such modifications to be made to the plans as may be reasonably necessary for the purpose of securing its system against interference or risk of damage or for the purpose of providing or securing proper and convenient means of access to any apparatus.

(6) Works executed under this Order shall be executed only in accordance with the plan, submitted under sub-paragraph (1) or as relevant sub paragraph (4), as amended from time to time by agreement between the undertaker and the protected person and in accordance with such reasonable Requirements as may be made in accordance with sub-paragraph (5) or (7) by the protected person for the protection of the apparatus, for securing access to the apparatus, and the protected person shall be entitled to watch and inspect the execution of this works.

(7) Where protected persons require any protective works to be carried out either themselves or by the undertaker (whether of a temporary or permanent nature) such protective works shall be carried out to the protected persons’ satisfaction prior to the commencement of any authorised works (or any relevant part thereof) and the protected person shall give 56 days’ notice of such works from the date of submission of a plan in line with sub-paragraph (1) or (4) (except in an emergency).

(8) If the protected person in accordance with sub-paragraph (5) or (7) and in consequence of the works proposed by the undertaker, reasonably requires the removal of any apparatus and gives written notice to the undertaker of that Requirement, paragraphs 1 to 3 and 6 to 8 shall apply as if the removal of the apparatus had been required by the undertaker under paragraph (7).

(9) Nothing in this paragraph shall preclude the undertaker from submitting at any time or from time to time, but in no case less than 56 days before commencing the execution of any works, a new plan, instead of the plan previously submitted, and having done so the provisions of this paragraph shall apply to and in respect of the new plan.

(10) The undertaker shall not be required to comply with sub-paragraph (1) where it needs to carry out emergency works as defined in the 1991 Act but in that case it shall give to the protected person in question notice as soon as is reasonably practicable and a plan of those works and shall—

(a)comply with sub-paragraph (5), (6) and (7) insofar as is reasonably practicable in the circumstances; and

(b)comply with sub-paragraph (11) at all times.

(11) At all times when carrying out any works authorised under the Order comply with Wales and West Utilities Limited’s policies for safe working in proximity to gas apparatus “Specification for safe working in the vicinity of pipelines and associated installation operating above 2 BAR’s” and HSE’s “HSG47 Avoiding Danger from underground services”.

Expenses

6.—(1) Subject to the following provisions of this paragraph, the undertaker shall pay to the protected person on demand all charges, costs and expenses reasonably committed or incurred by the protected person in, or in connection with, the inspection, removal, alteration, relaying or replacing or protection of any apparatus or the construction of any new apparatus which may be required as a direct consequence of the execution of any such works as are referred to in this Schedule including without limitation—

(a)the cutting off of any apparatus from any other apparatus;

(b)the approval of plans;

(c)the carrying out of protective works (including any temporary protective works and their removal);

(d)the survey of any land, apparatus or works, the inspection and monitoring of works or the installation or removal of any temporary works reasonably necessary in consequence of the execution of any such works referred to in this Schedule.

(2) The undertaker shall not be liable to the protected person pursuant to paragraph (1) unless the protected person has submitted to and agreed with the undertaker details of the works required unless such works are required in an emergency.

(3) An amount which apart from this sub-paragraph would be payable to the protected person in respect of works by virtue of sub-paragraph (1) shall, if the works include the placing of apparatus provided in substitution for apparatus placed more than 7 years and 6 months earlier so as to confer on the protected person any financial benefit by deferment of the time for renewal of the apparatus in the ordinary course, be reduced by the amount which represents that benefit.

Indemnity

7.—(1) If by reason or in consequence of the construction of any such works authorised by this Order or in consequence of the construction, use, maintenance or failure of any of the authorised works by or on behalf of the undertaker or in consequence of any act or default of the undertaker (or any person employed or authorised by him) in the course of carrying out such works, including without limitation works carried out by the undertaker under this Order or any subsidence resulting from any of these works), any damage is caused to any apparatus or property of the protected person, or there is any interruption in any service provided, or in the supply of any goods, by any protected person, or the protected person becomes liable to pay any amount to any third party, the undertaker shall—

(a)bear and pay on demand the cost reasonably incurred by the protected person in making good such damage or restoring the supply; and

(b)indemnify the protected person for any other expenses, loss, demands, proceedings, damages, claims, penalty or costs incurred by or recovered from the undertaker, by reason or in consequence of any such damage or interruption or the protected person becoming liable to any third party as aforesaid.

(2) The fact that any act or thing may have been done by a protected person on behalf of the undertaker or in accordance with a plan approved by a protected person or in accordance with any Requirement of the protected person or under its supervision shall not, excuse the undertaker from liability under the provisions of sub-paragraph (1) except where such act or thing done has been done as a result of the negligence of the protected person.

(3) The protected person shall give the undertaker reasonable notice of any such claim or demand and no settlement or compromise shall be made without first consulting the undertaker and taking into account its representations.

(4) Not commence construction (and not to permit the commencement of such construction) of the authorised works on any land either owned by the protected person in respect of which the protected person has an easement or wayleave for their Apparatus or any other interest or to carry out any works within 15 metres of the protected person’s Apparatus unless and until the protected person is satisfied acting reasonably (but subject to all necessary regulatory constraints) that the undertaker has procured acceptable insurance (and provided evidence to the protected person that it shall maintain such acceptable insurance for the construction period of the authorised works from the proposed date of commencement of construction of the authorised works) and the protected person has confirmed the same in writing to the undertaker.

(5) Notwithstanding any other provision in this Schedule and or the provisions of sub-paragraph 7(2) of this Schedule and for the avoidance of doubt, the protected person shall not be deemed whether by admission, approval, consent, confirmation, acknowledgement, inspection or otherwise to have assumed any responsibility for the plan or any authorised works (without limitation) carried out or to be carried out nor shall the protected person be deemed to have accepted, acknowledged or given or made any representation that the authorised works shall not cause any damage to any Apparatus.

Enactments and agreements

8. Nothing in this part of this Schedule shall affect the provisions of any enactment or agreement regulating the relations between the undertaker and a protected person in respect of any apparatus laid or erected in land belonging to the undertaker on the date on which this Order is made.

Co-operation

9. Where in consequence of the proposed construction of any of the authorised works the protected person makes Requirements for the protection or alteration of apparatus under paragraphs 5 the undertaker shall use all reasonable endeavours to co-ordinate the execution of the works in the interests of safety and the efficient and economic execution of the authorised development and taking into account the need to ensure the safe and efficient operation of the protected person’s undertaking and the protected person shall use all reasonable endeavours to co-operate with the undertaker for that purpose.

Access

10. If in consequence of the powers granted under this Order the access to any apparatus is materially obstructed, the undertaker shall provide such alternative means of access to such apparatus as will enable the protected person to maintain or use the apparatus no less effectively than was possible before such obstruction.

Arbitration

11. Any difference or dispute arising between the undertaker and the protected person under this Schedule shall, unless otherwise agreed in writing between the undertaker and the protected person, be determined by arbitration in accordance with article 35 (arbitration).

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